Com. v. Blake

• Decision Date: 16 December 1992
• Parties: COMMONWEALTH v. Johnny E. BLAKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1289

604 N.E.2d 1289

413 Mass. 823

COMMONWEALTH v. Johnny E. BLAKE.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Oct. 6, 1992.

Decided Dec. 16, 1992.

Michael Malkovich, Northampton, for defendant.

Mark G. Mastroianni, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant was found guilty by a jury of trafficking in cocaine, possession of cocaine with intent to distribute, and possession of marihuana with intent to distribute. On appeal he challenges the denial of his pretrial motion to suppress evidence seized from his house pursuant to a warrant. He also challenges the judge's refusal to conduct an evidentiary hearing concerning allegedly false or misleading statements contained in the search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We transferred the case here on our own motion and now affirm.

We summarize the relevant facts from the judge's findings. On November 1, 1989, at approximately 3:30 P.M., the western Massachusetts narcotic task force arrested the defendant after he attempted to sell cocaine to one Estaban Mendoza, a task force operative. Mendoza, who had worked for Federal and State authorities for fourteen years, had set up the purchase of nine ounces ¹ of cocaine from the defendant according to their prearrangement. Mendoza met the defendant at a gasoline station on Bay Street in Springfield. There, the defendant left a paper bag containing cocaine on the front seat of his automobile. Mendoza examined the cocaine, signaled into a hidden microphone and the agents moved in and arrested the defendant.

Following the defendant's arrest, agents went to the defendant's residence at 65 Humbert Street, entered, and secured the premises. Officer Richard Latta, who was at the gasoline station at the time of the arrest, applied for a search warrant for the defendant's premises. A magistrate of the Springfield District Court authorized the search warrant at approximately 5:18 P.M. When the officers at the defendant's apartment received word that the search warrant had been issued, they began a search and seized cocaine, marihuana, a scale, a handgun, ammunition, and $2,915 in cash. ²

1. Franks hearing. The defendant, citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claims that he was entitled to a hearing to challenge two false and misleading statements contained in Officer Latta's affidavit in support of the issuance of the warrant. ³ As proof, the defendant contrasts the affidavit with the police report of another officer involved in the arrest. ⁴

Under Franks, a hearing is constitutionally required if the defendant makes a substantial preliminary showing that: (1) the affiant made a false statement, either knowingly or intentionally, or with reckless disregard for its truth, and (2) at least in the case of reckless falsehood, the misstatement is necessary to the existence of probable cause. Commonwealth v. Ramos, 402 Mass. 209, 215, 521 N.E.2d 1002 (1988). Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767-768, 422 N.E.2d 767 (1981). Franks v. Delaware, supra. The events described in the police report do not suggest that Officer Latta's statements were misleading. ⁵ The defendant offers no other evidence, by affidavit or otherwise, that the warrant affidavit was false or misleading. Such a challenge does not rise to the level of a substantial preliminary showing of intentional falsity or reckless disregard for the truth in the affidavit. Commonwealth v. Ramos, supra. Commonwealth v. Douzanis, 384 Mass. 434, 439, 425 N.E.2d 326 (1981).

2. Probable cause. The judge ruled that the information contained in Latta's affidavit accompanying the search warrant application for the defendant's house was "legally sufficient to establish probable cause that the evidence sought to be seized would be found at the particular location at the time of the search." We agree.

Under art. 14 of the Massachusetts Declaration of Rights, a magistrate must determine that probable cause exists before issuing a search warrant. Commonwealth v. Santana, 411 Mass. 661, 663, 583 N.E.2d 1288 (1992). Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). Where information from a confidential informant is relied on to supply probable cause to arrest and to search, art. 14 requires that the affidavit apprise the magistrate of some facts and circumstances showing both (1) the basis of the informant's knowledge, and (2) the credibility of the informant or the reliability of his information. Commonwealth v. Cast, 407 Mass. 891, 896, 556 N.E.2d 69 (1990). Commonwealth v. Ramos, supra, 402 Mass. at 212, 521 N.E.2d 1002. See Spinelli v. United States, 393 U.S. 410, 414-415, 89 S.Ct. 584, 588-589, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). While each prong of the Aguilar- Spinelli standard presents a separate inquiry, independent police corroboration of the informant's detailed tip can compensate for deficiencies in either or both prongs of the standard and satisfy the probable cause requirement under art. 14. Commonwealth v. Cast, supra. Commonwealth v. Upton, supra, 394 Mass. at 375-376, 476 N.E.2d 548. Furthermore, the affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Commonwealth v. Ramos, supra, 402 Mass. at 213, 521 N.E.2d 1002.

Even if we assume that the affidavit in question, as set out in the margin, ⁶ contains insufficient information to establish the informants' bases of knowledge and veracity, the subsequent police investigation corroborated the informants' statements. Informant SB-170010, later identified as Mendoza, set up a controlled drug purchase from the defendant. ⁷ By agreeing to sell cocaine to Mendoza the defendant corroborated the information supplied previously by the other informants. Thus, the information from Mendoza and the details of the controlled drug transaction cured any defect, if any existed, under the Aguilar- Spinelli standard.

After Mendoza met with the defendant at his house a drug buy was scheduled for the next day, and the police were provided with a telephone and beeper number that the defendant had given Mendoza. The agents traced the telephone number to the defendant. The next day, the controlled drug purchase unfolded in the same manner as Mendoza had described it. Mendoza telephoned the defendant, the defendant met Mendoza, and brought nine ounces of cocaine as planned. The defendant's involvement in the monitored drug purchase corroborated the details of the warrant affidavit. See Commonwealth v. Benlien, 27 Mass.App.Ct. 834, 838, 544 N.E.2d 865 (1989) (account of controlled buy repaired any weakness in showing of reliability and lent strength generally to submission to magistrate).

The defendant's argument, that the affidavit does not establish a sufficient nexus between the controlled drug buy and the defendant's house, is similarly deficient. The second informant stated that the defendant was selling large amounts of drugs out of his apartment. Then, Officer Latta arranged for Mendoza to go to the defendant's residence and set up a drug purchase. There, the defendant told Mendoza that he had twenty-five ounces of cocaine "on hand," and that he could deliver nine ounces of cocaine the following day. The defendant gave Mendoza a beeper number and a telephone number that was listed under the defendant's name at his apartment. Mendoza telephoned the defendant at that number to carry out the purchase at 3:15 P.M. the next day. Shortly thereafter, agents watched the defendant leave the residence and drive to the gasoline station where the drug buy was to take place. To argue that these facts are insufficient to permit the issuing magistrate to determine whether the drugs could reasonably be expected to be located in the defendant's apartment borders on the frivolous. Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980).

3. Securing the premises. The defendant next argues that the agents, by forcibly entering and securing the defendant's residence while awaiting the issuance of a search warrant, violated the defendant's rights under the Fourth Amendment to the United States Constitution and under art. 14, and, thus, all evidence seized from the residence should have been suppressed. We disagree.

Securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents. Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984). ⁸ Police officers may secure an area to be searched before a warrant is procured as long as the search does not commence before issuance of the warrant. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), and cases cited. Even assuming its illegality, the entry would not be a basis to suppress evidence subsequently obtained unless there is a showing that the evidence sought to be suppressed is an exploitation of the prior illegality. Commonwealth v. Frodyma, 393 Mass. 438, 442, 471 N.E.2d 1298 (1984), and cases cited. "Whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence [if there is] an independent source for the warrant under which the evidence was seized." Segura v. United States, supra, 468 U.S. at 813-814, 104 S.Ct. at 3390.

The judge found that the agents entered and secured the defendant's apartment after the arrest at 3:30 P.M., and did not search for evidence until the warrant was issued. The affidavit in support of the warrant was based wholly on evidence independent of the entry into the apartment....